Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1887-02-24


called on his behalf. But It must not
be lost sight of, when you come
to deliberate upon this case, that
the witness Simpson tells you he
spoke to the president OF the defendant
company-Mr. MendinhAll--at the time
they were discussing the plans, suggesting
that the wall was thin and that another four
inches added to 1t between the pilasters
would make IL look better and stiffen 1t up.
What the witness meant by such language
and whether the president understood IL as
so meant is for You to decide; but he fur
ther tells you that Mr.. Mendinhall pro-
eeeded to argue the subject with him, and
that he then let the matter drop, or words
TO that effect. Mr.. Enos another witness,
also tells you that he too spoke OF the thin
ness of the wall before the work on It began,
or at or about that time, to other agents OF
the defendant. Thus the defendant, IL you
interpret the language OF those witnesses
as so meaning. was apprised beforehand by
competent judges that the wall would be
Inadequate. Again, the true building In
spector of the city-the witness Philemma
Ohandler-was at the site of the new build
fng after the work Of laying the wall had
been begun and before 1t had progressed
very far, and expressed himself to the con-
tractor Simpson and Mr.. Davis to the effect
that II there was to be any lateral pressure
on the wall 1t would not do and
that he would have pulled 1t down
II It had not gone too far. In
addition to this there is In proof before
you the building regulations OF the city OF
Wilmington In relation to the size, &C.. for
outside walls for rooms with truss roofs
such as this building had-the seventh of
which, In two Of Its consecutive sentences,
reads as follows: "The outside walls Of
buildings having truss roofs, such as
churches, public halls, theatres, restaurants
and the like, II more than 16 or less than 70
feet high, shall average at least II inchesdn
thickness; IL over 90 feet In width and less
than 40 feet In hight, the walls shall be 21
inches thick ; the stone walls for the founda-
tlons, or cellar walls, must be at least four
inches thicker than the brick wall of the
first story. Any building constructed,
altered or erected to a greater hight than
the specifications In this section, or for
other purposes, the increased thickness Of
the WALL If necessary, shall be determined
by the building Inspector"
Undoubtedly the city had very good
reason for enacting such regulations, the
chief object of which, at least, must be
taken to have been, security OF the lives of
those having occasion to resortto or frequent
| them, The term having trussed roofs applied
| to the outside walls of such structures In
cludes as we'll factories, or other buildings,
where the calling of people Is exercised
from day to day, as the buildings mem
| toned which wethink were designated SIM
ply for illustration; and also that 1t applies
as well to such a building with one brick
wall as one with four Of such; otherwise
| the regulation would not accomplish what
we conceive to have been its obvious In
tent. The defendant, therefore, had the
| opinion of his builder that the wall should
| be thicker to stiffen 1t up-like In
formation in effect from the actual
| workman, Enos-the declaration of the
building inspector before the walls had
a1aAIk
| ditionally the city building regulations
enough, In the contention of the plaintiff,
| to have warned the defendant that the wall
about TO be built would be dangerous, al
| though nobody used that particular term In
| regard TO It. Whether 1t was enough, or
not, is for you to decide and me abstain from
expressing any opinion about 1t, except to
say that the erection Of the wall contrary to
| the ordinance Is of itself presumptive evil
denee of negligence. II you think there
/ was enough Information to apprise the de-
| fendant OF the probable danger of the build
| ing from falling from lateral pressure( which
| the wind undoubtedly made) then the duty
| of diligence and care / have before spoken
| OF as obtaining on the part OF the master
toward his servant, was not per-
/ formed in this case, and the consequences
| thereof resulting TO the plaintiff, sup
| posing him to have been guilty OF no me-
\ glect OF actual requirement of care on his
| part, must fall upon the defendant. OF that
| requirement have spoken before and 1t Is
| not necessary to repeat what then said.
| The defendant seems to have relied
| upon the opinion Of Its own official
| servants as to the sufflciency OF
| the wall In question TO support the roof
that was erected upon it-Aznss calling In the
| Judgment of engineers or architects, whose
| special business II is to design buildings,
| fix the thickness of their walls, the sup
| Dnrta panaaaurv for tha nnninfpnannA f1f
them In their proper position, and do all
other necessary things In the line OF their
| profession for the guidance OF the builders
| In the erection of buildings. 1t is true the
4 defendant was not without assistance Ia
that respect, for witnesses were produced
who consulted with the president about the
plan he proposed. But they were the official
servants / have spoken of, who have testi-
fed to the sufflciency Of the wall that fell,
for the purpose IL was to serve. But none
| of them, as remember, ever followed the
profession of an architect exclusively, or
for any considerable length of time; and
by the testimony OF such professional arehi-
teets as were examined for the plain
tiff and who live In this city they
are unknown to the profession, Hs
such. Still, 1t is not by any means conclu-
sive evidence that they had not the
requisite qualifications as architects-it be-
ing for you to decide whether In a work OF
fell Is proved to have been, the defendant
ought not to have secured the skill and
training of an architect devoted to that pro-
fession, rather than trusted to Its own
officers or servants, engaged chiefly In other
engagements In Its service. The defendant
did not secure such extraneous aid, but
chose to rely upon its own resources In
this respect. II you believe the serious and
to some extent fatal consequences resulting
from the falling of the building were attri-
butal to theinherent defect In the we'll from
its thinness, then the defendant must an
swer for such consequences by your ver-
dict. But no resort to any architect for ad-
vice would have protected the defendant In
building an unsafe wall.
The plaintiffs action is founded upon the
allegation that the building in question fell,
In consequence of the mistake made by, and
want Of due care on the part OF the defend
ant In erecting the brick wall on Heald
street, part of the new rolling mill, of the
dimensions which have been proved and
admitted. The defendant denies that there
was any error or want OF due diligence In
building such wall and each has produced
witnesses In great number to maintain the
issue thus agreed upon between them.
have already given you the law in regard to
the case and diligence required of the
you to say whether the defendant duly
observed It. So have already pointed out
TO you the general duty attaching to OF
incumbent upon servants In entering upon
service In itself dangerous one, and
endeavored to make myself understood In
giving It as the opinion of the court, that
as the plaintiff In this case was carpenter
and employed as snch by the defendant
whose duty 1t was TO make the pursuit o
his employment safe, the risks strictly incl
dent to 1t only excepted, Re, the plaintiff
had the right to rely upon the due and
! faithful performance of its duty by the de-
fendant, and was not bound to take the
extraordinary care of inspecting the walls
OF the building in going upon the root tc
work. And this Is all the more reasonable
because the defendant itself had erected the
wall and avouched its safety by putting III
: servants to work upon It. gave an Illus
tration to show how unreasonable such {
! requirement of extraordinary care by the
plaintiff would seem to be. Still, we do no
ourselves undertake to passupon that ques
ton, but leave it to you to decide, alonl
with the question of the defendants negli
, | gence or want of due care, under all th,
, circumstances, In erecting the wall, as wa
done,
! Should you decide, in view Of all the tes
timony on both sides, that the wall was suf
| ieent, not only to support the bare weigh
, Of the roof, but to carry It to use an napppro
] PIRATE expression by the architeot The
ophilus P. Chandler,i IN the usual exigencie
OF storms OF rain and wind that assail build
, ings, then the defendant should be givei
. your verdict ;butifyo find on the contrary
, that It was not adequate to that service, o.
requirement, then your verdict should bt
i for the plaintiff. But the defendant insists
; that the storm that occurred at 2 O'Clock Il
/ the afternoon of July 29th, 1885, was an ex
/ traordinary one. against which the pruden
: caution which 1t claims was exercised, Il
/ the. erection Of the wall, to insure safety